Information & Ethics Committee on April 18th, 2024

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Commissioner, I'm having a very hard time with this. We have a situation in which individuals you're investigating, like in the ArriveCAN scandal, as an example, can lie to you, can commit perjury, can be found to have intentionally destroyed documents to frustrate investigations, and the maximum penalty that you can apply is a referral to the Attorney General. Is that correct?

[Caroline Maynard]

That is my only authority in those situations, yes.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

Herein lies the problem, because, as has been pointed out, the Attorney General sits in the cabinet and has been appointed by Prime Minister Justin Trudeau. This situation is incredibly politically sensitive for the government.

We have an independent officer of Parliament who goes to great lengths to get answers, to get access to information and to ensure that basic transparency laws are being adhered to, and the Attorney General, who, as I've said, is a Liberal cabinet minister, is the arbiter of whether or not it goes any farther.

I just can't see how that ensures any kind of confidence in our public institutions or the efficacy of the work you're able to do. What's the solution to this?

[Caroline Maynard]

I think separating the investigation of criminal and administrative matters is the appropriate thing for an agent of Parliament, but as I submitted earlier, it may be better to have in the act that I can refer these types of cases directly to the authorities in charge of investigating those types of criminal charges.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

What's the precedent for that? Does that exist with other officers of Parliament?

[Caroline Maynard]

If you look at the federal act for judges in any court, if they find during a hearing or a process evidence of intent to commit a criminal offence, they can refer to any authority they want to.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

What about the lobbying commissioner? Does she have to refer cases to the Attorney General, or...?

[Caroline Maynard]

I don't know.

[Michael Barrett, Conservative, Leeds—Grenville—Thousand Islands and Rideau Lakes, ON]

She refers them to the Royal Canadian Mounted Police, so I find it incredibly troubling that we have a situation here.... I think Mr. Kurek rightly put it that we end up with them going into a black hole, and that's not how we restore confidence in our public institutions.

Thanks very much.

[Caroline Maynard]

Thank you.

[The Chair, Conservative, John Brassard]

Thank you, Mr. Barrett and Commissioner.

Mr. Housefather, you have five minutes. Go ahead.

[Anthony Housefather, Liberal, Mount Royal, QC]

Thank you very much.

Thank you, Commissioner.

I'm going to come back to Mr. Barrett's question. Has the act been amended since 2015 to change the provisions about how you would refer matters to the Attorney General?

[Caroline Maynard]

No.

[Anthony Housefather, Liberal, Mount Royal, QC]

It wasn't this nefarious act by the current government to change the law so that you can refer matters only to the Attorney General. That existed while Mr. Harper was Prime Minister.

[Caroline Maynard]

It's been like this since 1983.

[Anthony Housefather, Liberal, Mount Royal, QC]

That's since before many of us were even born.... Okay. Thank you very much.

Coming back to delays, I wanted to ask you a question. You talked a bit about how you were clearing the backlog. I know that when you were first appointed, I saw a CBC article from April 2018 that said they had done an investigation at that time, and there were 267 complaints that were more than five years old. Do you know how many today are more than five years old?

[Caroline Maynard]

I don't have that, but I can provide it to you.

I think we're now at less than 20 cases from prior to when I was appointed. My goal is really to reduce the backlog to two to three years max, which is still long, but we do have cases that are extremely complex. We're working on trying to have, yes, an inventory that's flowing instead of growing.

[Anthony Housefather, Liberal, Mount Royal, QC]

Well, I congratulate you on that, because we certainly prefer flowing to growing.

Can I ask this question? In the United States, as I understand it, you can go to the federal court, or whatever the American court is that would be applicable to an access to information claim, weeks after you file, but they don't have a position that's analogous to yours. Is that correct?

[Caroline Maynard]

Yes.

[Anthony Housefather, Liberal, Mount Royal, QC]

Here, the way our law works, you would be able to go to court only after you had already ruled on a claim. Is that correct?

[Caroline Maynard]

Yes.

[Anthony Housefather, Liberal, Mount Royal, QC]

That could lead to potential delays of years if the process isn't flowing faster, which then means that the material people are asking for is so out of date that it's almost irrelevant.

Can I ask, what can we do to help you in your job of making this flow faster? That's other than just giving you more money, which would be the obvious answer to that, but I don't know that I have the authority to do that.

[Caroline Maynard]

Having more resources when complaints are increasing is definitely a solution. Having fewer complaints that are not necessary coming to my office would also be very helpful sometimes, when I do a systemic investigation.

As you're going to see in May, I'm going to be submitting to you a report with respect to immigration files, with a possible solution there whereby the government can provide information otherwise than having people have to submit access requests. That's going to reduce the number of complaints that come to me and will give me more time to work on the real complaints I should be getting.

[Anthony Housefather, Liberal, Mount Royal, QC]

That’s a good idea.

I heard you say earlier that you can process applications informally without necessarily requiring a full investigation.

When I was the mayor of Côte‑Saint‑Luc, we did the same thing. I never made people file these types of requests. We always maintained the principle that, if somebody asked us for the information and we were unable to provide it, we would say so.

If government departments adopted such a practice, would that make your work a lot easier?

[Caroline Maynard]

Absolutely.

I think the proactive disclosure currently in the act is very limiting. We encourage institutions to give out repeatedly requested information.

They know which documents are requested and could provide them voluntarily without waiting for an official access request.